Prosecutors Tout Key Fire Evidence

Insurance Policy Found In Charred Debris Of Stormy's Eatery Inferno In Which 2 Died

January 23, 1999|By Purvette A. Bryant of The Sentinel Staff

An insurance policy, used Friday as key evidence in a federal arson trial, survived beneath charred debris in an office trash can at Stormy's Seafood Restaurant eight years ago.

Prosecutors think Forrest ``Biff'' Utter torched his New Smyrna Beach eatery to gain insurance money in a Sept. 2, 1991, blaze that killed two city firefighters.

Jackie Herndon, an arson investigator and an area supervisor for the federal Bureau of Alcohol, Tobacco and Firearms, said she found a copy of the policy in an envelope while searching the building.

The policy covered $250,000 for the building, $125,000 for personal property, $25,000 for income reimbursement and about $3,500 for outside structures, Herndon said.

After the fire, prosecutors say, Utter tried to cash in on the policy, which had been purchased by mortgage holder Marian Yelvington in June 1991.

Utter, 54, is charged with conspiracy to commit arson, mail fraud and the use of fire in the commission of a federal felony.

He faces life in prison if convicted.

The former businessman had severe financial problems and led a lavish lifestyle including a riverfront home, boat, Mercedes and expensive vacations, prosecutors said.

In 1994, a jury found Utter guilty of the charges and he was sentenced to 15 years in prison. Two years later, the 11th U.S. Circuit Court of Appeals in Atlanta ordered a new trial. The appeals court ruled that evidence supported Utter's conviction, but a federal judge in Orlando erred by allowing evidence at trial that Utter was a suspect in a previous Kentucky arson.

The trial will continue at 8:30 a.m. Tuesday before U.S. District Judge Anne Conway at the federal courthouse in Orlando.

Firefighters Doug Sapp and Mark Wilkes, both 28, died in the early morning blaze at 132 N. Causeway. Their air tanks ran out while they looked for the fire's source.

Firefighter David Colee testified that a wave of fire rolled across the ceiling while he and other firefighters tried to get the flames under control.

Firefighters were signaled to retreat because of the intense heat, he said.

The hose team entered the restaurant first and tried several times to find the origin of the blaze but couldn't, firefighter Philip Ware told jurors.

When they first entered the building, the fire appeared to be in the kitchen, Ware said.

``It was pitch black,'' Ware said. The smoke ``was thick at the time. We couldn't figure out where to go. It was getting hot. It was heavy, heavy smoke and the heat was getting extreme.''

When cross-examined by Assistant U.S. Public Defender Joel Remland, Ware said he suspected the fire started in the kitchen, but that he actually didn't know where it began.

When the mortgage holder inquired about the policy and found out, she reactivated it.

Somehow, only Utter received a copy of the renewed policy, Jennings said.

Friday, Assistant U.S. Attorney Paul Byron presented testimony from Michael McAfee, a former Altamonte Springs police officer who pleaded guilty to three bank robberies in 1991 and was sentenced to 12 1/2 years in prison.

McAfee said he and Utter became friends while inmates in a Georgia federal prison.

McAfee said he once told Utter he should tell prosecutors who set the fire so that Utter's sentence could possibly be reduced. McAfee said Utter went into a rage.

``He pointed at me,'' McAfee said, ``and said they know I didn't set the fire. But they want me to tell them who did it. I'm not going to tell them.''

Utter also stated that he shared information about the fire with his girlfriend but ``she turned him in,'' McAfee said.